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February122012

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[...]

Sheba was a powerful incense-trading kingdom that prospered through trade with Jerusalem and the Roman empire. The queen is immortalised in Qur'an and the Bible, which describes her visit to Solomon "with a very great retinue, with camels bearing spices, and very much gold and precious stones ... Then she gave the king 120 talents of gold, and a very great quantity of spices."

Although little is known about her, the queen's image inspired medieval Christian mystical works in which she embodied divine wisdom, as well as Turkish and Persian paintings, Handel's oratorio Solomon, and Hollywood films. Her story is still told across Africa and Arabia, and the Ethiopian tales are immortalised in the holy book the Kebra Nagast.

Hers is said to be one of the world's oldest love stories. The Bible says she visited Solomon to test his wisdom by asking him several riddles. Legend has it that he wooed her, and that descendants of their child, Menelik – son of the wise – became the kings of Abyssinia.

January312012

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TL;DR: Important dates for ACTA in the European Parliament:
- 29 February/1 March: Discussion in international trade committee,
- April or May: Vote in international trade committee,
- 12, 13 or 14 June: Final vote in plenary (most important vote).
(Please note, all dates may be changed)

On its website, the EU Commission pretends that ACTA “is not SOPA”. This is correct. In some important ways, ACTA is worse than SOPA. ACTA is the global blueprint for repressive laws such as SOPA:

ACTA is the inspiration for SOPA/PIPA in the US. While SOPA may have been put aside for a moment, ACTA is a global agreement negotiated outside of democratic arenas and meant to be imposed globally. Moreover, if SOPA were to be adopted, the US Congress could amend or abrogate it. ACTA will prevent the EU and its Member States as well as other signatories to change their copyright and patent laws, and to fix their broken and brutal enforcement policies to adapt to the new economy of sharing.

If ACTA is adopted, it will be possible for the entertainment industry to exert pressure on every Internet actor under threat of criminal sanctions (art.23). Intermediaries will thus be forced to deploy (art.27) automated blocking, filtering of communications and deletion of content online. Such measures will inevitably restrict users' freedoms online.

ACTA's call for “cooperation” between rights-holders and Internet service providers is also advocated by the European Commission as “extra-judicial measures” and “alternative to courts”. This means that police (surveillance and collection of evidence) and justice missions (penalties) could be handed out to private actors, bypassing judicial authority and the right to a fair trial. By defending this SOPA-style policy in ACTA, the Commission is paving the way for the copyright industries' enforcement agenda, preventing any true debate on alternative to repression. This fits with the announced revision of the IPRED and eCommerce directives.

See also La Quadrature's analysis of the final text of ACTA's digital chapter.

1. “ACTA is important for the EU's external competitiveness, growth and jobs as well as to the safety of citizens”

ACTA is a direct by-product of the lobbying offensive launched in 2004 by the International Chamber of Commerce, presided by the then CEO of Vivendi-Universal Jean-René Fourtou, whose wife acted as EU Parliament rapporteur for the IPR Enforcement Directive (IPRED) adopted the same year. It is one of the worst examples of private interests taking over policy-making.

ACTA may have been negotiated like other trade agreements, but it is not just a trade agreement on tariffs. Instead, ACTA generalizes extreme civil sanctions and broadens the scope of criminal sanctions.

Binding the EU to such outdated models, and deploying schemes that can be used as anti-competitve weapons will only hamper innovation, competition and growth. Not only in the digital economy, but in many fields which rely on the free sharing of knowledge, from agriculture to healthcare.

There was never any impact assessment on the need for such an plurilateral agreement. The Commission never proved that tougher enforcement standards worldwide would actually benefit the EU's public interest, much less the rest of the world's.

Instead of imposing ACTA to developing countries, the EU should urgently look at the broader consequences of its current policies (EUCD, IPRED) on innovation, access to culture and fundamental rights, and reform these policies to lay the foundation of a true knowledge-based economy.

Contrary to the Commission's claims, transparency on ACTA was only made possible after negotiation documents were leaked by insiders worried of ACTA's consequences. These leaks forced the negotiators to release negotiation texts in the Spring of 2010, more than 3 years after the beginning of the negotiations.

The negotiation and implementation of ACTA bypasses legitimate international organizations (WTO, WIPO) where copyright, patent and trademarks policy are discussed. This is all the more unacceptable considering that a growing number of countries understand the importance of reforming these policies by breaking away from blind repression.

2. “ACTA is a balanced agreement, providing adequate protection to sectors in need, while safeguarding the rights of citizens and consumers”

Safeguards in the text are purely generic and declarative, mostly in the general parts of the agreement, where enforcement provisions, generally vaguely worded, are binding to signatories. For instance, a study by legal professors Kroff and Brown stresses that ACTA “overall significantly strengthens enforcement measures (especially criminal law ones), without any of the safeguards and exceptions needed to ensure a balance of interests between right holders and parties”.

The Commission says ACTA does not go further than the EU acquis, but leading EU legal scholars have made clear that on important points it does: in particular on criminal measures, for which there is no EU acquis, and on border measures and damages.

The letter of ACTA may not be contrary to the eCommerce directive, EUCD or IPRED, but strengthens them and prevents EU lawmakers from amending them on crucial points.

The overall logic of ACTA's digital chapter paves the way for extra-judicial measures, similar to those of SOPA and PIPA, whereby rights holders and ISPs or financial service providers would “cooperate” to take “measures” against alleged infringements that could only amount to censorship mechanisms, bypassing due process and the right to a fair trial.

This reading is comforted by the criminal sanctions provided for “aiding and abetting” infringements (art. 23.4). Such concerns are also accentuated by the EU Commission's IPR strategy and the current overhaul of the IPRED and eCommerce directive.

3. “ACTA is about adequately enforcing existing intellectual property rights, but does not create new rights”

ACTA modifies the scope of criminal sanctions in EU Member States, ensuring they will be applied for cases of infringement on a “commercial scale”, defined as “direct or indirect economic or commercial advantage” (art. 23.1). This term is vague, open to interpretation, and just plainly wrong when it comes to determining the scope of proportionate enforcement, as it does not make any distinction between commercial and non-profit infringement. Widespread social practices, like not-for-profit file-sharing between individuals, as well as editing a successful information website or distributing innovative technological tools, could be interpreted as “commercial scale”.

By extending the scope of criminal sanctions for “aiding and abetting” to such “infringement on a commercial scale”, ACTA will create legal tools threatening any actor of the Internet. Access, service or hosting providers will therefore suffer from massive legal uncertainty, making them vulnerable to litigation by the entertainment industries.

The Presidency of the Council of the EU (representing the 27 Member States governments) had to negotiate ACTA in conjunction with the Commission. The Presidency negotiated the “criminal sanction” chapter of ACTA, which could not be negotiated by the Commission as criminal law is part of Member States' competencies. This illustrates that there is no EU acquis on criminal sanctions and proves that ACTA does change EU law.

Beyond broadening the scope of copyright, patent and trademarks enforcement, ACTA establishes new procedural rules favouring the entertainment industries. These procedures will have a dramatic chilling effect on potential innovators and creators, especially considering ACTA's insane damage provisions (during a trial, right holders will be able to submit their preferred form of damage computation, see art. 9.1).

In the future, ACTA's scope could also be easily expanded through the “ACTA committee”. The latter will have authority to interpret and modify the agreement after it has been ratified, and propose amendments. Such a parallel legislative process, which amounts to signing a blank check to the ACTA negotiators, would create a precedent to durably bypassing parliaments in crucial policy-making, and is unacceptable in a democracy. This alone should justify that ACTA be rejected.

4. “ACTA has a broad coverage, so as to protect all European creators and innovators, through a broad range of means”

China, Russia, India and Brazil, countries where most of counterfeiting is produced, are not part of ACTA, and have stated publicly that they will never be. Considering the widespread opposition to ACTA, the agreement has lost any legitimacy on the international stage.

Again, the Commission has not even proved the need for new enforcement measures nor that existing TRIPS measures are not enough.

The Commission keeps stepping up repression, when in many instances counterfeiting is at its core a market failure due to the inadequacy of IPR holders' business models and contracts. At the same time, no EU Commission initiative exists to take a positive approach on discussing new financing models for the culture economy fit for the digital environment.

Geographical indications – a key point for Europe's small businesses and cultural heritage – are mostly excluded from ACTA. The few references to geographical indications in ACTA will have no or very little effect on third countries' national law.

Get in touch with Members of the EU parliament and make sure they know what ACTA is really about. Visit our our dedicated campaign page.

FFII has also drafted a detailed response to another EU Commission document on ACTA called “10 myths about ACTA”.

In another cable about Pranab Mukherjee, the finance minister being groomed to be India’s next PM, Hillary Clinton is revealingly blunt: “To which industrial or business groups is Mukherjee beholden?”

During Singh’s reign as prime minister, India has also witnessed a
strong backlash against globalization among the poor. The most striking
instance is the militant Communist movement representing landless
peasants and indigenous forest peoples in Central India—these are
Indians fighting their dispossession by mining companies that are backed
by the Indian government. Early last year, India’s Supreme Court
censured the government for creating an informal militia against
Communist militants. Claiming that “the poor are being pushed to the
wall,” the court blamed increasing violence in the country on “predatory forms of capitalism, supported by the state.”

Since then Singh has also lost his main constituency: the
beneficiaries, both real and potential, of “rising” India. Periodicals
such as Foreign Affairs, The Economist, and The Financial Times
that in 2005 hailed India as a “roaring capitalist success story” now
wonder if India is descending into a Latin-American-style oligarchy.

... and the Organization for Economic Cooperation and Development. Leaked cables published by WikiLeaks in 2009 exposed early drafts of ACTA, resulting in a firestorm of controversy. Those cables, coupled with later releases, showed that ACTA negotiations began in 2006 and were controversial even to participating states. An historical
summary of the treaty’s progress through December can be found here. ...

The workers were enraged enough to kill president K. C. Chandrashekhar after their union leader, M. Murali Mohan, was killed by baton-wielding riot police on Thursday. The labor violence occurred in Yanam, a small city in Andra Pradesh state on India’s east coast.Police were called to the factory by management to quell a labor dispute. The workers had been calling for higher pay and reinstatement of previously laid off workers since October. Murali was fired a few hours later. The next morning, at 06:00 on Friday, Murali went to the factory along with some workers and tried to obstruct the morning shift, local media reported. Long batons, known as lathis in India, were used by police who charged the workers, injuring at least 20 of them, including Murali. He died on the way to hospital,...

January282012

Economics Professor Richard Wolff
details the problems of capitalism and urges our recognizing its
obsolescence and replacing it with institutions that truly serve the
people.Talk at Church of All Souls in New York City, January 24, 2012. Camera, audio: Joe Friendly

As Wayne Rash wrote earlier this week, "ACTA is, in effect, a treaty, negotiated in secret by the U.S. Trade Representative, Ron Kirk... Until recently, the actual text of ACTA was so secret that only a few lawyers outside of the White House and the USTR offices had actually seen it. And those people were required to sign non-disclosure agreements."

What ACTA Is

The goal of ACTA, says the Electronic Frontier Foundation (EFF) is "to create a new standard of intellectual property enforcement above the current internationally-agreed standards in the TRIPs Agreement and increased international cooperation including sharing of information between signatory countries' law enforcement agencies."

The EFF backgrounder also provides some insight to ACTA. While President Obama is carrying the torch for ACTA right now, the treaty goes back to October 2007 (or farther) when the U.S., Japan, Switzerland and the European Community said they'd be working on a new intellectual property enforcement treaty.

ACTA isn't the only area where (as the EFF puts it) "copyright industry rightsholder groups have sought stronger powers to enforce their intellectual property rights... to preserve their business models." But it is getting closer to reality.

The word is that ACTA probably doesn't change U.S. law. Probably? Nobody's entirely sure. But as Techdirt calls out "it certainly does function to lock in US law, in a rapidly changing area of law, where specifics are far from settled." It also, of course, serves to dictate compliance in other countries.

Why ACTA Is Unacceptable

ACTA was negotiated in secret – For me, this is reason enough to oppose any legislation or regulation. I don't care if it's the "Hugs for Puppies and Kittens Act," if people aren't given an opportunity to engage with their lawmakers about a law, it shouldn't be enacted.

Ridiculous damages – ACTA specifies "presumptions for determining damages" that basically assume that all of the infringed goods had sold. To put it another way, ACTA takes the position that if a user uploads a song to a file-sharing network, damages should be calculated as if the recipients would have paid for the work in question. This is ridiculous, as has been explained any number of places. Many people who download illicit copies would simply never have purchased the work in question had it not been available for free.

It may be unconstitutional – The Obama administration is claiming that ACTA not a treaty, but an "executive agreement" and thus not subject to legislative approval. As Rash notes in his eWeek piece, Congress does not agree.

It's over-broad – It's worth noting that not all of ACTA is necessarily bad. Some of the agreement is targeted at countering counterfeit goods that may be actively harmful, like counterfeit prescription drugs. But ACTA goes well beyond single areas of intellectual property and essentially tries to bear-hug everything IP-related. Not good.

The ACTA committee is not accountable – ACTA creates a body outside of national and even international bodies, called the "ACTA Committee." (At least the name is honest.) The committee would not be accountable to the people governed by the agreement. Folks in the United States can vote out Lamar Smith and others who endorsed SOPA/PIPA, but we would have no real influence on the ACTA Committee.

No fair use provisions – As this opinion on ACTA by Eddan Katz and Gwen Hinze notes, ACTA would "export one half of the complex U.S. legal regime" but "without accompanying exceptions and limitations." In short, ACTA would not include fair use provisions and such that we expect in the U.S.

Criminalizes what used to be a civil offense – An opinion prepared by Douwe Korff and Ian Brown notes, "ordinary companies and individuals could be criminalised for innocent activities or trivial breaches of copyright, or for technical breaches that serve a wider, overriding public interest (as in whistleblowing), without an appropriate defence." The EFF says "If the real intent behind introducing expanded criminal sanctions is to address infringement on the Internet, this provision is not likely to do so, but is likely to cause significant collateral harm to consumers."

Locks In DMCA-Like Provisions – As the EFF notes (PDF) in its submission to the USTR, ACTA would "lock in" some of the controversial aspects of the DMCA that require legal enforcement against circumventing copy protection, etc. In other words, don't get too set on the idea of jailbreaking that iPhone.

ACTA could be used against legitimate medications – As I noted earlier, looking to crack down on counterfeit drugs is good. Going after legitimate "grey market" drugs, that's another story. Yet as Techdirt notes "there are very reasonable concerns that ACTA will be used to crack down, not on actual counterfeit medicines, but on "grey market" drugs – generic, but legal, copies of medicines. Some European nations, for example, already have a history of seizing shipments of perfectly legal generic drugs in passage to somewhere else."

That's 10, but I'm sure there are more. As I wrote on January 18th, sending SOPA/PIPA to the legislative trashbin for the year is great, but not enough. SOPA/PIPA are not the only laws that threaten the free and open Internet. There's plenty of bad policy to go around at the state, national and international levels. One round of annoyed phone calls to Congress is not going to do the trick. Even if it's too late to stop ACTA, there's even worse coming.

This post was originally published on the Electronic Frontier Foundation's Deeplinks blog.

Yesterday, Twitter announced in a blog post that it was launching a system that would allow the company to take down content on a country-by-country basis, as opposed to taking it down across the Twitter system. The Internet immediately exploded with allegations of censorship, conspiracy theories about Twitter’s Saudi investors and automated content filtering, and calls for a January 28 protest. One thing is clear: there is widespread confusion over Twitter's new policy and what its implications are for freedom of expression all over the world.

Let’s get one thing out of the way: Twitter already takes down some tweets and has done so for years. All of the other commercial platforms that we're aware of remove content, at a minimum, in response to valid court orders. Twitter removes some tweets because they are deemed to be abuse or spam, while others are removed in compliance with court orders or DMCA notifications. Until now, when Twitter has taken down content, it has had to do so globally. So for example, if Twitter had received a court order to take down a tweet that is defamatory to Ataturk–which is illegal under Turkish law–the only way it could comply would be to take it down for everybody. Now Twitter has the capability to take down the tweet for people with IP addresses that indicate that they are in Turkey and leave it up everywhere else. Right now, we can expect Twitter to comply with court orders from countries where they have offices and employees, a list that includes the United Kingdom, Ireland, Japan, and soon Germany.

Twitter's increasing need to remove content comes as a byproduct of its growth into new countries, with different laws that they must follow or risk that their local employees will be arrested or held in contempt, or similar sanctions. By opening offices and moving employees into other countries, Twitter increases the risks to its commitment to freedom of expression. Like all companies (and all people) Twitter is bound by the laws of the countries in which it operates, which results both in more laws to comply with and also laws that inevitably contradict one another. Twitter could have reduced its need to be the instrument of government censorship by keeping its assets and personnel within the borders of the United States, where legal protections exist like CDA 230 and the DMCA safe harbors (which do require takedowns but also give a path, albeit a lousy one, for republication).

Twitter is trying to mitigate these problems by only taking down access to content for people coming from IP addresses the country seeking to censor that content. That's good. For now, the overall effect is less censorship rather than more censorship, since they used to take things down for all users. But people have voiced concerns that “if you build it, they will come,”–if you build a tool for state-by-state censorship, states will start to use it. We should remain vigilant against this outcome.

In the meantime, Twitter is taking two additional steps to ensure that users know that the censorship has happened. First, they are giving users notice when they seek that content. Second, they are sending the notices they receive to the Chilling Effects Project, which publishes the orders, creating an archive. Note: EFF is one of the partners in the Chilling Effects project. So far, of very big websites only Google and Wikipedia are this transparent about what they take down or block and why. When Facebook takes down a post, there is no public accountability at all. Through Chilling Effects, users can track exactly what kinds of content Twitter is being asked to censor or take down and how that happened.

So what should Twitter users do? Keep Twitter honest. First, pay attention to the notices that Twitter sends and to the archive being created on Chilling Effects. If Twitter starts honoring court orders from India to take down tweets that are offensive to the Hindu gods, or tweets that criticize the king in Thailand, we want to know immediately. Furthermore, transparency projects such as Chilling Effects allow activists to track censorship all over the world, which is the first step to putting pressure on countries to stand up for freedom of expression and put a stop to government censorship.

What else? Circumvent censorship. Twitter has not yet blocked a tweet using this new system, but when it does, that tweet will not simply disappear—there will be a message informing you that content has been blocked due to your geographical location. Fortunately, your geographical location is easy to change on the Internet. You can use a proxy or a Tor exit node located in another country. Read Write Web also suggests that you can circumvent per-country censorship by simply changing the country listed in your profile.

"An edited excerpt from David Weinberger’s new book, Too Big to Know, explains how the massive amounts of data necessary to deal with complex phenomena exceed any single brain’s ability to grasp, yet networked science rolls on."